On Thursday, Alabama death row inmate Ronald Bert Smith is scheduled to be executed. With the hours ticking away, he’s waiting on two appeals that illustrate two different debates over how the death penalty is carried out in America.

How to die

Smith has argued that the lethal injection procedure Alabama uses is prohibited by the Eighth Amendment against cruel and unusual punishment.

The 2015 Supreme Court decision Glossip v. Gross held that inmates who argue that their method of execution is cruel and unusual must present alternatives that are "known and available" and likely to substantially reduce the risk of pain. In other words, if you want to say your lethal injection would be unconstitutionally painful — which is what Smith is arguing — you have to suggest a way you’d rather die.

Smith, who was convicted of fatally shooting a store clerk during a 1994 robbery, proposed execution by a heavy dose of the sedative midazolam, a method that had never been used before. It would feel like overdosing on heroin, doctors told me. However, a federal judge ruled that the statute of limitations had passed. Smith appealed and is awaiting a decision this week.

Smith isn’t the only Alabama death row inmate who has asked for a new way to die. Convicted murderers Tommy Arthur proposed death by firing squad and Anthony Boyd suggested firing squad or hanging. The judge threw out both cases because Alabama’s execution law only allows lethal injections.

“It could feel like you’re on fire, but there’s no way of them being able to say to somebody, ‘This hurts.’”

Why are these challenges coming now? In the last five years, big drug manufacturers blocked states from using their drugs in executions and European countries banned their import to the US. More and more states faced execution drug shortages, driving them to develop new, untested methods. "This level of experimentation on human bodies is out of control," said Deborah Denno, a Fordham University law school professor who studies lethal injections.

Alabama was one of several states that changed its lethal injection protocol after the supply of old drugs dried up. It has used its new three-drug cocktail — midazolam as a sedative, rocuronium bromide as a paralytic, and potassium chloride to stop the heart — exactly once, for the execution of convicted murderer and rapist Christopher Brooks in January.

A witness to that execution said in an affidavit that she saw Brooks’ left eye pop open. That could indicate he was in profound pain as he died, anesthesiologists said (although state officials disagreed). If the initial sedative isn’t strong enough, the inmate could feel the excruciatingly painful effects of the heart-stopping drug — and because of the paralyzing drug, he wouldn’t be able to move at all. "It could feel like you’re on fire, but there’s no way of them being able to say to somebody, ‘This hurts,'" said Randall Tackett, a University of Georgia anesthesiologist.

If Smith’s appeal had been granted, it would have meant the three-drug protocol was unconstitutional and prevented the state from using it ever again.

Smith's challenge doesn't get at the bigger issue of whether the death penalty itself is constitutional. Medical ethicists have suggested that executions are never humane, which would make the question of methodology superfluous. Sedative dosage levels and statutes of limitations are layers of abstraction away from whether the state should kill.

But as long as we have capital punishment, the way people are killed is an important ethical question. And it’s one that our court system isn’t fully addressing: Throughout weeks of legal wrangling over the alternate method that Smith proposed, the judge didn’t directly consider the constitutionality of Alabama's current procedure.

"There are really legitimate concerns about what the states are doing here, but the way courts are applying this, in forcing plaintiffs to establish a viable alternative, means the courts don’t even get to the merits of their underlying claim," said Jennifer Moreno, an attorney at the Berkeley Law School death penalty clinic.

Judicial override

Smith is also waiting on a separate appeal to the US Supreme Court over the way he was sentenced to death. The jury in his case recommended that he serve life in prison, by a vote of 7 to 5. But the trial court judge overrode their decision, sentencing Smith to death in October 1995. Alabama is the only state to allow judicial override in death penalty cases.

Earlier this year, the Supreme Court struck down Florida’s death penalty statute, which also allowed judges to override juries and unilaterally sentence defendants to death. Smith’s lawyers are arguing that his case is similar enough to the Florida case that he should get a new trial or at least a stay of execution. The Alabama State Supreme Court rejected that claim last month, so the appeal is at SCOTUS.